The Law and Legality

Law Reports

The Equal Justice Project Pro Bono team recently had the opportunity to undertake important research regarding the principle of legality in New Zealand. Our research concerned the application of this principle to two cases that are currently before the courts – both of which have received substantial media coverage in recent months.

The principle of legality refers to an ancient doctrine and is an internationally recognized human right. Closely related to the rule of law, the principle of legality requires the law to be clear and prospective, rather than retrospective. Decision makers must adhere to the established law. In short, the principle of legality maintains that no crime can be committed without contravening a pre-existing law.

Broadly, our task was to survey the English origins of the principle of legality, as well as research its application in the New Zealand courts. As we went, we amassed relevant statements expounding upon the principle. While all volunteers involved in the project were aware of the principle of legality, the task proved more difficult than imagined. As a result of its place as a fundamental cornerstone of the common law, very few judges felt the need to explicitly discuss the operation of the principle.

Nevertheless, the Equal Justice Project managed to find a substantial number of judgments relating directly or indirectly to the principle, ranging from 16th century judgments from the Courts of the Exchequer to the more recent decisions of the New Zealand Supreme Court. It became apparent that when the courts did discuss the principle of legality, they were vocal defenders of it, and did not accept any unlawful executive action.

The team at the Equal Justice Project found the principle of legality a particularly rewarding subject to research. With the common law development of the principle of legality throughout the centuries, there was certainly an engaging historical aspect to this research. However, the most interesting aspect was to see how the principle continues to be an integral part of public law today, both as a counterweight to arbitrary executive action and as an important instrument in maintaining a balance of power between the different branches of government. We hope that our research on the principle will be helpful in the cases that are before the Courts and in upholding the principle of legality in New Zealand.

The Equal Justice Project would like to say a huge thank you to all the team members who made this project such a success. We were a small group working to a tight deadline, but each member went above and beyond in their research, and found some great stuff hidden in cases across many jurisdictions. A massive thanks is also due to Gayathiri and Shelley, our Pro Bono managers who got the project rolling, and then worked to the small hours of the morning doing final editing and compiling. This was a true team effort, and one that we all thoroughly enjoyed.